Citation Nr: 9821341
Decision Date: 07/14/98 Archive Date: 07/23/98
DOCKET NO. 95-02 604 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation for extensive
calluses of the feet, post- operative residuals of a right
foot disorder, currently evaluated as 50 percent disabling.
2. Entitlement to an increased (compensable) evaluation for
urethritis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active service from June 1971 to June
1974.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA) St. Petersburg, Florida, Regional Office (RO)
dating from March 1994.
In a rating decision dated in November 1996 the RO expanded
the grant of service-connection for a bilateral foot disorder
rated as extensive calluses of the feet evaluated as 20
percent disabling under Diagnostic Code 5284 to also include
postoperative residuals of a right foot disability based on
nerve damage under 38 U.S.C.A. § 1151 effective from December
1, 1993, date of hospital admission, for a right foot
disorder with a temporary total 100 percent rating under
38 C.F.R. § 4.30 assigned from hospital admission to the end
of February 1994 and with reduction to a 50 percent schedular
evaluation under Diagnostic Code 5278 effective March 1,
1994.
The issue of entitlement to compensation pursuant to 38
U.S.C.A. § 1151 has been granted and is not an issue for
appellate disposition.
In September 1997, the Board remanded this case to afford the
veteran a hearing before a member of the Board. As the
veteran is shown to have failed to report for a hearing on
January 22, 1998, the case was forwarded to the Board for
appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that his service-connected bilateral
foot disorder is manifested by pain on use that is productive
of foot disability warranting the assignment of a greater
disability evaluation than that currently assigned.
Moreover, it is argued that the veteran’s service-connected
urethritis is manifested by painful urination and other
symptoms thereby meeting the criteria for a compensable
evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against grants of increased evaluations for service-connected
extensive calluses of the feet, post-operative residuals of a
right foot disorder, and urethritis.
FINDINGS OF FACT
1. All the evidence necessary for an equitable disposition
of the veteran's appeal regarding well-grounded claims has
been obtained by the RO.
2. The veteran’s service-connected extensive calluses of the
feet, post-operative residuals of a right foot disorder is
not shown other than to more nearly approximate marked
contraction of plantar fascia with dropped forefoot, all toes
hammertoes, very painful callosities and marked varus
deformity.
3. The veteran’s service-connected urethritis is manifested
by subjective complaints but without any objectively
demonstrated findings including infection noted on recent VA
genitourinary examination dated in March 1997.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a disability
evaluation greater than the maximum 50 percent evaluation
currently assigned for extensive calluses of the feet, post-
operative residuals of a right foot disorder, have not been
met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321(b)(1), 4.1, 4.2, 4.7, 4.20, 4.71a, Diagnostic Code 5278
(1997).
2. The criteria for the assignment of an increased
(compensable) evaluation for urethritis have not been met.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.10,
4.20, 4.115a, Diagnostic Code 7509-7512 (effective prior to
February 17,1994) 38 C.F.R. §§ 4.2, 4.7, 4.115b, Diagnostic
Codes 7509, 7512 59 Fed.Reg. 2523-2529 (Jan. 18, 1994)
(effective February 17, 1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Criteria
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4 (1997). In determining the disability
evaluation, the VA must acknowledge and consider all
regulations which are potentially applicable based upon the
assertions and issues raised in the record and explain the
reasons and bases used to support its conclusion. Schafrath
v. Derwinski, 1 Vet.App. 589 (1991). Generally, the degrees
of disability are considered adequate to compensate for
considerable loss of working time from exacerbation or
illness proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1997).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See 38 C.F.R. §
4.2 (1997); Francisco v. Brown, 7 Vet.App. 55 (1994). The
pertinent diagnostic codes and provisions will be discussed
below as appropriate.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R.
§ 4.7 (1997). The basis of disability evaluations is the
ability of the body as a whole, or of the psyche, or of a
system or organ of the body to function under the ordinary
conditions of daily life, including employment. 3 8 C.F.R. §
4.10 (1997). When an unlisted condition is encountered, it
will be permissible to rate under a closely related disease
or injury in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R.
§ 4.20 (1997).
The veteran’s extensive calluses of the feet, post-operative
residuals of a right foot disorder, is currently evaluated as
50 percent disabling. The Board noted that under Diagnostic
Code 5276 for acquired flatfoot, a maximum 50 percent
evaluation may be warranted where the evidence of bilateral
flatfoot is "[p]ronounced; marked pronation, extreme
tenderness of plantar surfaces of the feet, marked inward
displacement and severe spasm of the tendo achillis on
manipulation, not improved by orthopedic shoes or
appliances." Id.
Under Diagnostic Code 5278 of the Rating Schedule for
bilateral claw foot a maximum 50 percent evaluation requires
marked contraction of plantar fascia with dropped forefoot,
all toes hammertoes, very painful callosities and marked
varus deformity.
The provisions of 38 C.F.R. § 4.14 preclude the assignment of
separate ratings for the same manifestations under different
diagnoses. The critical element is that none of the
symptomatology for any of the conditions is duplicative of or
overlapping with the symptomatology of the other conditions.
Esteban v. Brown, 6 Vet.App. 259 (1994).
The Board has also considered the holding in DeLuca v. Brown,
8 Vet.App. 202, 204-207 (1995), stating that the Board must
consider functional loss and objective evidence of pain on
use resulting from the disability. See 38 C.F.R. §§ 4.40,
4.45. Where symptomatology demonstrates such considerations,
a higher schedular evaluation may be warranted.
38 C.F.R. § 3.321(b)(1) (1997) for an extra-schedular rating
provides that to accord justice in an exceptional case where
the schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extra-schedular evaluation commensurate
with the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.
Under the applicable criteria in effect prior to February 17,
1994, the veteran’s service-connected urethritis may be rated
as chronic cystitis under the provision of 38 C.F.R. Part 4,
Code 7512. A noncompensable evaluation is warranted for mild
chronic cystitis. A 10 percent evaluation requires moderate
cystitis with pyuria and diurnal and nocturnal frequency.
Also, the veteran’s service-connected urethritis may be rated
as hydronephrosis under Diagnostic Code 7509. This provided
for a minimum 10 percent evaluation with only an occasional
attack of colic, not infected and not requiring catheter.
38 C.F.R. § 4.31 provides that in every instance where the
schedule does not provide a zero percent evaluation for a
diagnostic code, a zero percent evaluation shall be assigned
when the requirements for a compensable evaluation are not
met.
Under the applicable criteria in effect on and after February
17, 1994 the veteran’s service-connected urethritis may be
rated as hydronephrosis under Diagnostic Code 7509. This
provides for a minimum 10 percent evaluation with only an
occasional attack of colic, not infected and not requiring
catheter..
The veteran's service-connected urethritis condition may also
be as evaluated as cystitis under Diagnostic Code 7512 which
is evaluated as voiding dysfunction or a urinary tract
infection, whichever is predominant. In this case, the Board
finds that the veteran's complaints center around a voiding
dysfunction. Voiding dysfunction is addressed under 38
C.F.R. § 4.115a, which directs that the particular condition
be rated as urine leakage, urinary frequency, or obstructed
voiding. Under urinary frequency, a minimum 10 percent
rating is warranted upon a showing of a daytime voiding
interval of between two and three hours or when there is
awakening to void two times per night. A minimum 20 percent
rating for voiding dysfunction requires the wearing of
absorbent materials which must be changed less than two times
per day. For urinary tract infection manifested by long term
drug therapy, 1-2 hospitalizations per year and/or requiring
intensive management warrants a 10 percent evaluation.
Obstructive voiding manifested by marked obstructive
symptomatology (hesitancy, slow or weak stream, decreased
force of stream), with one or a combination of post void
residuals greater than 150 cc, uroflowmetry- markedly
diminished peak flow rate (less than 10 cc), recurrent
urinary tract infections secondary to obstructions, or
stricture disease requiring periodic dilation every two to
three months, is evaluated as 10 percent disabling. 38 C.F.R.
§ 4.115a.
I. Entitlement to an increased
evaluation for extensive calluses of the
feet, post-operative residuals of a right
foot disorder, currently evaluated as 50
percent disabling.
Factual Background
An historical review of the record shows that in an original
rating decision dated in October 1974, the RO granted
service-connection for callosities of the feet evaluated as
10 percent disabling under Diagnostic Code 5284, based upon
findings in the service medical records and on a report of an
initial postservice VA examination dated in September 1974.
(A separate rating was assigned for a skin disease of the
feet which is not part of the present appeal). On a VA
examination in September 1974, plantar calluses were noted on
both feet with tenderness noted on the left. Slight clawing
of some of the toes on the left was noted. The Achilles
tendon was tighter on the left. Ankle dorsiflexion on the
left was to 90 degrees. Ankle dorsiflexion on the right was
to 100 degrees.
On a report of a VA orthopedic examination dated in August
1977, it was noted that the veteran complained of calluses on
the balls of both feet which were painful. He noted they
were painful while standing or walking. He noted being given
metatarsal bars to wear in his shoes by a VA outpatient
clinic. On examination thick callous formation beneath the
metatarsophalangeal (MP) joints on the plantar surface of
both feet. There were three discrete, thickened calluses on
the left foot and two on the right foot. Moderate tenderness
over the callous areas was noted. There was moderate claw-
like deformity of the toes of both feet, most marked on the
left foot. Gait was normal except that he could not walk on
the toes of his feet without pain. He used metatarsal bars
in both shoes.
In a rating decision dated in October 1977, the RO granted an
increased 20 percent evaluation for service-connected
extensive calluses of both feet under Diagnostic Code 5284.
On a report of a VA examination dated in December 1980 it was
noted that the veteran had worked as a mail carrier and
handler from late 1977 to late 1979 with no time lost and was
currently working as a corrections officer with 104 hours
lost from the time he had begun work in late 1979. He noted
working as a tire and wheel changer but no dates were
reported. An examination of the feet revealed several corns.
On December 1, 1993, the veteran was hospitalized by VA for
right foot complaints associated with preoperative diagnosis
of hallux abductor valgus, 1st metatarsal right foot with
hammertoe deformities two through five, right foot.
Following surgery, diagnosis was status post foot surgery,
right foot. Pain was eventually managed by medication. He
was discharged on December 3, 1993.
On a report of a VA examination of the skin of the lower
extremities in March 1995 callous formations were noted over
the first and fifth metatarsal heads on the left and over the
fifth metatarsal head on the right. They were tender to
palpation. Assessment was two callosities, painful and
thickened on each foot essentially in the same locations.
The veteran noted that in 1974, he was told to change his
method of walking.
On a report of a VA podiatry examination dated in April 1995,
the veteran noted still having right foot pain following
surgery in December 1973. He also noted having pain in the
left foot for two years exacerbated by walking and standing.
He complained of sharp pain during the day when walking or at
rest. He noticed it more at rest. Painful callosities were
noted under the first and fifth metatarsals of the left foot.
On objective examination, a painful first MP joint of the
right foot was noted. Very decreased light touch sensation
and absent pinprick sensation of the dorsal aspect of the
fifth right toe was noted. Severe contractures of digits one
through five of the left foot were noted with callosities
under the first and fifth metatarsals of the left foot. The
veteran was unable to rise up on his toes. He was unable to
squat.
There was no functional range of motion of the first MP joint
of the right foot. Proximal interphalangeal joints were
fixed and nonreducible of digits one through five on the
left. Gait was slow and antalgic. Diagnoses were severely
contracted digits one through five of the left foot; painful
first MP joint of the right foot with degenerative joint
disease and callosities under the first and fifth metatarsals
of the left foot.
A VA hospital summary dated in May 1995 reflects treatment
for postconcussive headache. It was noted as medical history
that there was questionable seizure disorder due to
blackouts. The veteran noted having had a collapsed lung in
1969 and crushed discs involving L4 and L5 in 1989 secondary
to an accident. It was also noted that he had right foot
surgery in 1993.
In a claim for nonservice-connected VA pension received in
June 1995, the veteran reported last working in July 1993 in
an operating engine type occupation. The primary disability
was listed as seizures and blackouts. There was no mention
of a foot disorder by the veteran.
In November 1996, the veteran attended a hearing before a
hearing officer at the RO. A copy of the hearing transcript
is on file.
Pursuant to a hearing officer’s decision in a rating decision
dated in November 1996, the RO expanded the grant of service-
connection for a bilateral foot disorder rated as extensive
calluses of the feet evaluated as 20 percent disabling under
Diagnostic Code 5284 to also include postoperative residuals
of a right foot disability based on nerve damage under
38 U.S.C.A. § 1151 effective from December 1, 1993, date of
hospital admission, for a right foot disorder with a
temporary total 100 percent rating under 38 C.F.R. § 4.30
assigned from hospital admission to the end of February 1994
and reduced to a 50 percent schedular evaluation under
Diagnostic Code 5278 effective March 1, 1994.
Analysis
As a preliminary matter, the Board finds that the veteran's
claim of entitlement to increased rating for his foot
disabilities is plausible and capable of substantiation, and
thus well grounded within the meaning of 38 U.S.C.A. §
5107(a). When a veteran submits well-grounded claims, VA
must assist him in developing facts pertinent to those
claims. 38 U.S.C.A. § 5107(a). The Board is satisfied that
all available relevant evidence has been obtained regarding
the veteran's claim, and that no further assistance to the
veteran is required to comply with 38 U.S.C.A.
§ 5107(a).
Following a preliminary review of the record the Board notes
that the veteran's pertinent foot disabilities are more
adequately rated by analogy to the provisions of Diagnostic
Code 5278 as the criteria under that code contemplate any
overlapping symptoms and manifestations. The Board notes
that there are no significant pertinent neurological symptoms
associated with the veteran’s service
connected foot disorder as the primary disability is noted to
be orthopedic in nature in addition to callosus.
Clearly, the veteran’s bilateral foot disability as described
clinically in the above paragraphs including pain is not
shown other than to more nearly approximate marked
contraction of plantar fascia with dropped forefoot, all toes
hammertoes, very painful callosities and marked varus
deformity contemplated within the criteria for a maximum 50
percent evaluation currently assigned.
Importantly, there is no evidence of marked interference of
employment or frequent hospitalization solely due to service-
connected foot disability at issue meeting the criteria for
an extra-schedular rating under 38 C.F.R. § 3.321 (b)(1).
In view of the foregoing the preponderance of the evidence is
negative and against an increased evaluation for service-
connected extensive calluses of the feet, post- operative
residuals of a right foot disorder.
II. Entitlement to an increased
(compensable) evaluation for urethritis.
Factual Background
A review of the record shows that in an initial rating
decision dated in October 1974, the RO granted service-
connection for urethritis evaluated as noncompesable
essentially by analogy with the criteria for cystitis based
upon findings noted in the service medical records and on an
initial postservice VA examination in September 1974. In
September 1994, other than by history, there was no evidence
of urethritis found on objective examination. The
noncompensable rating has remained in effect to the present.
The subsequently dated postservice clinical data are
nonrevealing for urethritis until a report of a VA
genitourinary examination dated in March 1997. The veteran
complained of nocturia times five to six and daytime
frequency approximately every hour. He voided with good
stream. He experienced occasional dysuria. He denied any
recent history of cloudy urine. Urinalysis study in mid
March 1997 was negative. Following additional objective
examination the examiner noted normal urology examination
with no evidence of lower urinary tract infection found.
As noted in the paragraphs above, the veteran gave sworn
testimony before a hearing officer at the RO. A copy of the
hearing transcript is on file.
Analysis
As a preliminary matter, the Board finds that the veteran's
claim of entitlement to an increased (compensable) rating for
his genitourinary disorder is plausible and capable of
substantiation, and thus well grounded within the meaning of
38 U.S.C.A. § 5107(a). When a veteran submits well-grounded
claims, VA must assist him in developing facts pertinent to
those claims. 38 U.S.C.A. § 5107(a).
The Board is satisfied that all available relevant evidence
has been obtained regarding the veteran's claim, and that no
further assistance to the veteran is required to comply with
38 U.S.C.A. § 5107(a).
Following a comprehensive review of the evidence the Board
notes that no pertinent objective genitourinary findings were
noted on an initial postservice VA examination dated in
September 1994 nor on the recent VA examination in March
1997. Moreover the postservice clinical data are silent for
any active treatment of urethritis over the postservice
years. The veteran’s complaints are not supported by
objective findings.
Accordingly, the preponderance of the evidence is negative
and against the grant of an increased (compensable)
evaluation for urethritis with application of all pertinent
rating criteria set out above.
ORDER
Entitlement to an increased evaluation for extensive calluses
of the feet, post-operative residuals of a right foot
disorder, currently evaluated at the maximum 50 percent
schedular evaluation is denied.
Entitlement to an increased (compensable) evaluation for
urethritis is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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